In State v. Garner, 2016 UT App 186, Defendant pleaded no contest to 3 counts of trafficking methamphetamine. Defendant entered conditional pleas, reserving the right to appeal whether the trial court should have made the prosecution reveal the names of confidential informants used in gathering evidence.
Defendant was charged with 3 counts of trafficking methamphetamine for sales made to confidential informants. After each sale, the confidential informants prepared written statements for the purpose of use at a preliminary hearing, while still with the police. The statements were offered at Defendant's preliminary hearing. Defendant objected to the anonymous statements and asked for disclosure of the names of the informants. The trial court denied Defendant's motion based on the government informer privilege found in Utah Rule of Evidence 505.
The Utah Constitution does not grant an absolute right to discovery prior to a preliminary hearing. Discovery is allowed as defined by state statutes and state rules of evidence. Utah Rule of Evidence 505 allows the State to keep the identity of a confidential informant anonymous unless and until said informant appears at a hearing. Defendant argued that the informants appeared in the present case through their written statements. However, the Utah Court of Appeals determined the plain meaning of the term "appears in court" is a personal appearance and not appearance through a written statement. Furthermore, under the Utah Constitution, the right to confrontation does not apply to preliminary hearings.
Since the confidential informants appeared through written statement, Defendant did not have a right to disclosure of their names. His convictions were affirmed.
Friday, September 23, 2016
Wednesday, September 21, 2016
The Jury Gets To Decide Who to Believe
In State v. Kirby, 2016 UT App 193, Defendant appealed his convictions for witness tampering, aggravated assault, and aggravated kidnapping. When reviewing a jury verdict, the Court views the evidence and and inferences which can reasonably be drawn from the evidence in the light most favorable to the defendant.
Defendant and the victim went to a hotel room to drink and do drugs. After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care. Defendant would not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.
Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim. As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.
On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.
Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence. Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.
When reviewing a jury verdict, the Court looks to see if the State introduced some evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.
Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.
Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.
Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.
Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile. Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.
Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness. To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement. However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.
Defendant's convictions were affirmed.
Defendant and the victim went to a hotel room to drink and do drugs. After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care. Defendant would not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.
Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim. As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.
On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.
Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence. Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.
When reviewing a jury verdict, the Court looks to see if the State introduced some evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.
Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.
Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.
Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.
Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile. Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.
Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness. To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement. However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.
Defendant's convictions were affirmed.
Friday, September 9, 2016
Affirmation of the Single Larceny Doctrine
In State v. Bell, 2016 UT App 157, Bell appealed his convictions for 2 counts of aggravated robbery, one for stealing a car by knife point and one for stealing a purse by knife point. The Court of Appeals affirmed the first conviction and vacated the second conviction as the convictions merged under the Single Larceny Doctrine. The Court of Appeals also rejected his defenses of factual impossibility and voluntary intoxication.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
Friday, September 2, 2016
The Board of Pardons and Parole Always Wins
In Padilla v. Board of Pardons and Parole, 2016 UT App 150, Padilla appealed the District Court's grant of summary judgment to the BOP, denying his petition for extraordinary relief pursuant to Utah Code of Civil Procedure Rule 65(B)(d).
Padilla was originally sentenced to two concurrent sentences of 1-15 years for crimes he pleaded guilty to. He was released on parole in September 2014. The BOP initiated a parole revocation hearing in March 2015. With the assistance of counsel, and after being advised of his rights, Padilla admitted to violating his parole conditions. The BOP then permanently revoked parole for Padilla to serve his full 15 year sentence.
Padilla claimed the BOP abused its authority for imposing the full sentence of incarceration. The BOP has stautory authority to grant release on parole. The trial court determined the sentence. As long as the period of incarceration falls in the applicable, indeterminate range, then the BOP's decision will not be deemed arbitrary and capricious. BOP decisions are also final and not subject to judicial review (see Utah Code §77-27-5(3)). Because Padilla admitted he violated the terms of his release, the BOP was legally entitled to revoke his parole and impose part or all of his sentence.
Padilla also claimed the BOP improperly considered information from dismissed and/or amended charges in making their decision. However, as previously indicated, judicial review is not available to consider the BOP's substantive decision. In addition, the BOP is entitled to rely on information known to it in making a parole decision.
Padilla's appeal was denied in a sua sponte motion for summary disposition.
Padilla was originally sentenced to two concurrent sentences of 1-15 years for crimes he pleaded guilty to. He was released on parole in September 2014. The BOP initiated a parole revocation hearing in March 2015. With the assistance of counsel, and after being advised of his rights, Padilla admitted to violating his parole conditions. The BOP then permanently revoked parole for Padilla to serve his full 15 year sentence.
Padilla claimed the BOP abused its authority for imposing the full sentence of incarceration. The BOP has stautory authority to grant release on parole. The trial court determined the sentence. As long as the period of incarceration falls in the applicable, indeterminate range, then the BOP's decision will not be deemed arbitrary and capricious. BOP decisions are also final and not subject to judicial review (see Utah Code §77-27-5(3)). Because Padilla admitted he violated the terms of his release, the BOP was legally entitled to revoke his parole and impose part or all of his sentence.
Padilla also claimed the BOP improperly considered information from dismissed and/or amended charges in making their decision. However, as previously indicated, judicial review is not available to consider the BOP's substantive decision. In addition, the BOP is entitled to rely on information known to it in making a parole decision.
Padilla's appeal was denied in a sua sponte motion for summary disposition.
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